dissents
I respectfully dissent from the majority opinion in the case sub judice for the reason that appellee herein breached no duty owed appellant as a business invitee and, therefore, summary judgment was proper.
Well established Ohio law states a shopkeeper is under no duty to protect business invitees from dangers "which are known to such invitee or are so obvious and apparent to such invitee that he may be reasonably expected to discover them and protect himself against them." Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, paragraph one of syllabus. (Emphasis added).
Furthermore, in 1985 the Ohio Supreme Court dealt with the exact issue presented here when a customer slipped and fell in a puddle of water tracked into a pharmacy fifteen feet into the store store when there was one inch of snow on the ground in Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St. 3d 203. The Paschal court stated as follows:
"* * * This court has dealt with this exact issue in S.S. Kresge v. Fader (19927), 116 Ohio St. 718, 723-724, in which we stated:
"Owners or lessees of stores, * * * are not insurers against all forms of accidents that may happen * * *. It is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obvious that it is wholly unnecessary to mention them here in detail." See, also, Boles v. Montgomery Ward & Co. (1950), 153 Ohio st. 381 [41 O.O. 403], paragraph two of the syllabus ("Ordinarily, no liability attaches to a store owner or operator for injury to patron who slips and falls on the store floor which has become wet and slippery by reason of water and slush tracked in from the *327outside by other patrons."); Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App. 3d 463
The Supreme Court in Paschal, supra, held a store owner has no duty either to eliminate or warn a patron of tracked in water where it is foreseeable and normally expected to be discovered or avoided by patrons. See also Rayburn, supra; Catherine Mines v. Russo's Stop and Shop (Feb. 23, 1990), Cuyahoga App. No. 55073, unreported.
Sears, appellee, supported its motion for summary judgment with the affidavits of appellant LaPonza and his friend Gabor.
The testimony is uncontroverted that it was Cleveland in January and snow was on the ground outside. The puddle in question was described by Gabor as consisting of "dirty water" and encompassing a six-foot by four-to-six-fcot area about six or seven feet from the entrance door and floor mat. Neither Gabor nor appellant noticed the water when entering. Furthermore, although both deponents purported to be in the store for approximately fifteen minutes, neither testified any Sears employee knew the water existed or that it was there for a long enough period that the employees should have known.
Gabor stated in his deposition as follows:
"Q. Were you also standing on a wet area?
"A. Yes.
”Q. Did you have any trouble walking?
"A. No, I didn't.
"Q. Was it wet outside that day, snow on the ground?
"A. Yes." (Tr. 15,16.)
Additionally, Mr. LaPonza testified in his deposition as follows:
"Q. And that’s because if there is any water on the floor, then you think that that's negligence?
"A. I would say so, if it is there for any amount of time, yes. And if it is a bad day outside, they got to know it is going to be bad inside, and why not take care of it before --" (Tr. 95, 96.)
Therefore, the water was in the vicinity of the customer entrance and according to Gabor's and LaPonza's testimony regarding the weather, it can be inferred the water was "tracked in" from snow or slush covered shoes or boots of customers. Appellant, as an invitee, should expect to find melted water in the vicinity of a busy doorway. Certainly, a large puddle such as one six foot in diameter should be so obvious and apparent to appellant that it was a reasonably foreseeable hazard against which plaintiff could protect himself. See Rayburn supra at 466.
This court is therefore bound by the rule in Kresge, supra, and its progeny. Appellant failed to show that Sears breached any duty owed appellant business invitee since:
(1) no duty exists to warn a customer of tracked in water in a high traffic area and,
(2) Sears had no actual or constructive knowledge of the puddle. Accord, Paschal, supra; Rayburn, supra; Catherine v. K-Mart (March 12, 1987) Cuyahoga App. No. 51709, unreported, Shiplett v. K-Mart (June 8, 1988) Summit App. No. 13384, unreported.
Furthermore, once Sears was alerted to the puddle, they immediately moved to remedy the situation as the deposition of LaPonza demonstrates:
"Q. Do you have any idea how long the water had been on the floor prior to when you slipped?
"A. Well, I was over here a good 20 minutes, a half hour.
"Q. At the service center.
"A. So I know it had to be there that long. And when I did slip, the guy that took care of me seen me slip, and right away he made the remark, you better get a porter before somebody kills themselves. And the porter came out right away." (Tr. 61.)
Accordingly, construingthe available depositions most strongly in favor of plaintiff, and applying the applicable Ohio Supreme Court case law, reasonable minds could only conclude appellee was not negligent having no duty to protect the business invitee from the dangers of tracked in snow reasonably foreseeable to the patron in the vicinity of heavy customer traffic.